Getting our minds right in Minnesota, part 2

In “Getting our minds right in Minnesota,” we noted the pending legal proceeding involving the possible suspension of Minnesota attorney Elliot Rothenberg’s license to practice law. The proceeding results from Rothenberg’s refusal to comply with the requirement imposed on Minnesota attorneys by the Minnesota Supreme Court to take courses in the “elimination of bias.” Rothenberg’s day in court comes next Monday, when the Minnesota Supreme Court will hear his argument that the court’s elimination-of-bias requirement is unconstitutional.
Tomorrow’s Minneapolis Star Tribune carries a good story by Mark Brunswick on the case. Because the issues involved here are ones I have personally been involved with and will have occasion to return to, I am taking the liberty of pasting in the Star Tribune story below in its entirety. In the story Brunswick correctly quotes me commenting on an elimination-of-bias program for attorneys like me who challenge the requirement and find it offensive; I have twice taught in the program and am organizing a third rendition of the program to be given next June. Brunswick clearly drew from our previous post on the controversy in writing the article. The Star Tribune story is “Attorney challenging state requirement of anti-bias classes for lawyers.” Here’s the story:
“A Minneapolis attorney is challenging a requirement that all Minnesota lawyers take anti-bias classes and he may lose his license to practice law because of it. Using words such as ‘draconian’ and ‘Orwellian’ to describe the requirement, Elliot Rothenberg has refused to take the continuing education classes, saying that they are not related to legal education and that the requirements are unconstitutional. Some of the classes have included what Rothenberg described as a ‘screed’ against capital punishment and a ‘rally for credit’ for a lawyer [Lynne Stewart] indicted on a charge of providing support to terrorists.
“Such classes ‘have nothing to do with promoting professional competence among lawyers and have everything to do with attempted ideological indoctrination,’ Rothenberg wrote in a brief. While Rothenberg represents the most significant challenge to the bias classes, other lawyers also have raised objections. A survey done by the state board that monitors the classes found that fewer than 50 percent of attorneys would offer comments ‘deemed positive,’ while 27 percent criticized the curriculum. One class that approaches anti-bias education with skepticism — called ‘Bias? What Bias?’ — has played to standing room-only crowds of lawyers seeking ‘to comply with the requirements and skip the usual indoctrination,’ said lawyer Scott Johnson, who attended one of the classes.
“The requirement to take the anti-bias classes arose as one recommendation from a 1993 report by a Minnesota Supreme Court task force that found racial bias permeated the state’s court system. Since its release, the racial bias report has generated criticism from two sides of the culture wars debate: from minority groups who contend that not enough is being done to correct inequities in the system and from many in the legal community who see the report as an extension of political correctness run amok. All lawyers are required to take several continuing education classes to maintain their licenses to practice, including the sessions on bias. The Board of Continuing Legal Education, which accredits the classes, is seeking to pull Rothenberg’s license because of his refusal. He faces a hearing on Monday in front of the state Supreme Court.
“An official for the Board of Continuing Legal Education said that the bias classes are deliberately nonideological and that more than 600 classes are accredited, giving lawyers a wide choice on which ones to attend. ‘They are very much done to keep ideology out,’ said Margaret Corneille, director of the board. Lawyers can lose their right to practice if they fail to complete two credits every three years in the ‘elimination of bias’ training. While lawyers every year are recommended for ‘involuntary restricted status’ because they have failed to complete some portion of their continuing education, Rothenberg’s case is believed to be the first related to a refusal to meet the anti-bias requirements.
“Rothenberg, 64, has been a member of the Minnesota Bar since 1966. He is a former state representative from St. Louis Park who ran unsuccessfully for Minnesota attorney general in 1982. He has been involved in a high-profile case before. He was the attorney for Dan Cohen, who sued the Star Tribune and the St. Paul Pioneer Press after they revealed that Cohen was the source of damaging information about a candidate during the 1982 gubernatorial campaign. Cohen lost his job at an advertising agency after the revelations. Rothenberg is the author of ‘The Taming of the Press: Cohen v. Cowles Media Company,’ an account of the case, which reached the U.S. Supreme Court and in which Cohen prevailed. Cowles Media was the parent company of the Star Tribune until 1998.
“In 1995, in the wake of its task force study, the state Supreme Court ordered that the anti-bias classes be instituted and lawyers be required to take at least three hours of instruction in legal ethics and professional responsibility and at least two hours on the elimination of bias in the legal profession. During the 1996-to-1999 continuing education reporting period, Rothenberg completed the two-hour class on elimination of bias. During the 1999-to-2002 period, he did not. After sending him several reminders, the board asked him to explain himself.
“Rothenberg sent back a response saying he felt the requirements violated his constitutional rights, including free speech. Rothenberg declined to comment for this article, saying his 20-page brief outlines his concerns. ‘Bigotry is evil. Every fair-minded lawyer and judge would agree,’ Rothenberg writes. ‘However, the elimination of bias program, far from advancing an ideal which would enjoy virtually universal support, has turned into an engine of divisive political ideology.’
“Among the classes Rothenberg objected to: